46 F.

3d 59

Virgil F. RYDER, Petitioner-Appellant,

v.
O.C. JENKINS, Warden; United States Parole Commission,
Respondents-Appellees.
Nos. 94-3113, 94-3188.

United States Court of Appeals,

Tenth Circuit.
Jan. 26, 1995.

Virgil F. Ryder, pro se.

Randall K. Rathbun, U.S. Atty., D. Brad Bailey, Asst. U.S. Atty., Topeka,
KS, for respondents-appellees.
Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.

Petitioner, a federal prisoner, filed a petition for a writ of habeas corpus,

pursuant to 28 U.S.C. Sec. 2241, challenging the actions of the United States
Parole Commission (Commission). The district court denied the petition, and
petitioner appealed. This court abated the appeal pending the district court's
disposition of petitioner's Fed.R.Civ.P. 59(e) motion for reconsideration. After
the district court denied the 59(e) motion, petitioner filed a new notice of
appeal. Our jurisdiction over these appeals,1 which have now been
consolidated, arises under 28 U.S.C. Secs. 1291 and 2253.

In 1968, petitioner was sentenced to twenty years' imprisonment for bank

robbery. He was paroled in 1972. While on parole, petitioner was convicted of
a state crime. He was incarcerated in state prison from 1978 to 1991. In 1981,
while petitioner was in state prison, the Commission officially revoked
petitioner's federal parole and ordered a parole violator term to commence upon
petitioner's release from state custody. In 1991, petitioner was paroled from
state prison and returned to federal custody to serve his parole violator
sentence. He received a parole hearing in 1991, after which two hearing

examiners recommended that petitioner be released in May 1992. That

recommendation was not followed, however, by the Commission, which
ordered petitioner's parole violator term to continue to the expiration of his
sentence.
3

Complaining about the Commission's decision, petitioner has filed two

petitions for writ of habeas corpus--this one, and a previous one filed in the
United States District Court for the Western District of Missouri. In his
previous petition, petitioner argued that (1) the hearing panel's recommendation
was improperly referred for review to the Commission; (2) the Commission
abused its discretion in setting petitioner's parole violator term; (3) the
Commission lacked jurisdiction over petitioner; (4) the Commission
improperly relied on aggravating factors to continue petitioner's custody beyond
that recommended by the guidelines; (5) the Commission failed to credit the
time petitioner served in state custody, as allegedly required by 28 C.F.R. Secs.
2.21(c), 2.47(e)(1), and 2.52; (6) the Commission erroneously refused to credit
earned good-time credits, the time petitioner spent on parole, and the time he
spent in state custody; and (7) the parole violator sentence violated the
separation of powers doctrine and the prohibition against double jeopardy, and
denied petitioner a fair and public trial. The district court for the Western
District of Missouri dismissed the petition, disposing of each argument on the
merits. The Eighth Circuit affirmed.

Armed with more elaborate arguments, petitioner filed this petition in the
United States District Court for the District of Kansas. Essentially, he argues
that his parole violator sentence should have commenced with the revocation of
his parole in 1981 and should have run concurrently with his state sentence. He
claims that 18 U.S.C. Sec. 4210(b)(2) (repealed 1986), which allowed the
Commission to determine whether the parole violator sentence should run
consecutively or concurrently to the sentence imposed for a new offense, is
ambiguous and its implementation must be governed by legislative history.
Citing House Conference Report No. 838, 94th Cong., 2d Sess. 32 (1976),
reprinted in 1976 U.S.C.C.A.N. pp. 335, 351, 364, petitioner argues that
Congress intended the federal sentence to be reinstated immediately after parole
revocation and served concurrently with a subsequent sentence. Because this
intent is not reflected in the Commission's regulations, particularly in 28 C.F.R.
Sec. 2.52(c)(2), petitioner argues that the Commission has abused its discretion
in promulgating the regulations. As a result, petitioner allegedly has been
denied concurrent service of his federal and state sentences, contrary to the
expressed intent of Congress.

The petition, in respondents' view, also renews a claim petitioner raised in his

prior petition--that the Commission abused its discretion when it refused to

follow the hearing panel's recommendation to release petitioner in May 1992.
Respondents asked the district court to dismiss that claim as successive under
28 U.S.C. Sec. 2244(a). All other claims, they urged, should be dismissed on
the merits.2

In response, petitioner denied raising any of his present arguments in his

previous habeas petition. Petitioner's Traverse, R. I, doc. 13 at 2. His new
arguments, he claimed, are, therefore, not barred by Sec. 2244(a). See Sanders
v. United States, 373 U.S. 1, 12, 83 S.Ct. 1068, 1075, 10 L.Ed.2d 148 (1963) ("
[Section] 2244 is addressed only to the problem of successive applications
based on grounds previously heard and decided."). He explained that the new
arguments are based on the intent of Congress, as expressed in the legislative
history, and on certain passages of 28 C.F.R. Part Two.

The district court did not rule on respondents' successive petition argument. Nor
did it consider petitioner's legislative history argument. Instead, the court
decided that the parole regulations do not violate the parole statute and that the
Commission's actions in this case did not violate the statute.

On appeal, petitioner complains that the district court failed to consider his
legislative history argument and his argument that, pursuant to 28 C.F.R. Part
Two, his detainer warrant was automatically executed after he served eighteen
months in state prison. Respondents, on the other hand, urge this court to reach
their successive petition argument. Further, they claim that petitioner's
legislative history argument is meritless.

This court has, in the past, reached the merits of a habeas petition that the
district court, instead of dismissing as an abuse of the writ, chose to dismiss on
the merits. See Coleman v. Saffle, 912 F.2d 1217, 1228-29 (10th Cir.), cert.
denied, 497 U.S. 1053, 111 S.Ct. 22, 111 L.Ed.2d 834 (1990). But see Macklin
v. Singletary, 24 F.3d 1307, 1310 (11th Cir.1994) (stating in light of Sawyer v.
Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992),
federal courts must resist temptation "to skip over an abuse of the writ issue and
deny a claim on the merits"), cert. denied, --- U.S. ----, 115 S.Ct. 1122, 130
L.Ed.2d 1085 (1995). In this case, however, the district court failed to consider
petitioner's central argument regarding legislative history. We deem it
appropriate to remand this case for consideration of respondents' successive
petition argument and, if necessary, for full consideration of petitioner's claims.
The court should also determine whether petitioner's claims constitute an abuse
of the writ, should respondents choose to raise that defense on remand. See
McCleskey v. Zant, 499 U.S. 467, 493-96, 111 S.Ct. 1454, 1469-71, 113

L.Ed.2d 517 (1991) (explaining abuse of the writ doctrine).3 Accordingly, we

REVERSE the district court's judgment and REMAND for further proceedings.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument

Curiously, respondents did not argue that petitioner's other claims should be
dismissed as abusively "assert[ing] new grounds unjustifiably omitted from a
prior petition." Watkins v. Champion, 39 F.3d 273, 275 (10th Cir.1994)

Abusive claims are new claims not raised in a previous petition. Sawyer v.
Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992).
Successive claims "raise grounds identical to grounds heard and decided on the
merits in a previous petition." Id